Helmer v The Coroners Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 01502

PROFESSOR JOHN HELMER	Plaintiff
v
THE CORONERS COURT OF VICTORIA	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2024
DATE OF JUDGMENT:	2 May 2025
CASE MAY BE CITED AS:	Helmer v The Coroners Court of Victoria
MEDIUM NEUTRAL CITATION:	[2025] VSC 235

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ADMINISTRATIVE LAW — Judicial review — Coroner — Investigation — Claim for order remitting matter to different coroner — Extensive correspondence including memoranda of submissions sent by senior next of kin to Coroners Court — Memoranda contain allegations of wrongdoing by the investigating Coroner and staff — Application by senior next of kin for access to documents not yet decided — Letters from Coroners Court advising of complaint and appeal avenues and advising that Coroners Court would not engage in further correspondence on matters raised — Claims of breach of procedural fairness, unreasonableness and ostensible bias — Grounds of judicial review not established — Relief refused.

CORONERS — Application for access to documents by senior next of kin — Application not yet decided — Potentially relevant considerations — Claim that documents are unlawfully withheld not established — Coroners Act 2008 s 115(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented	N/A
For the Defendant	Mr R H Ajzensztat	Coroners Court of Victoria (in-house solicitor)

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Overview.............................................................................................................................................. 2

Context................................................................................................................................................. 3

Facts3
Legal framework......................................................................................................................... 15
This proceeding........................................................................................................................... 20

Consideration.................................................................................................................................... 24

What is the subject matter under review?............................................................................... 24
Are any of the impugned actions or omissions inconsistent with procedural requirements specified in applicable legislation, including the Coroners Act ss 8, 9, 33 and Coroners Court Rules r 44, or with Coroners Court Practice Directions 3 of 2014 and 6 of 2014?..... 26
Are any of the impugned actions or omissions otherwise inconsistent with the requirements of the hearing rule of procedural fairness in coronial proceedings?.............................. 30
13 March letter................................................................................................................... 33
Treatment of Form 45 application................................................................................... 35
No breach of hearing rule of procedural fairness......................................................... 36

Is there a reasonable apprehension of bias?............................................................................ 36
Has the Coroner had inappropriate communications with ‘a target of investigation’, the Melbourne neurologist, and his legal representative?..................................... 37
Has the Coroner's conduct otherwise given rise to a basis on which it might be apprehended that he might not bring an impartial mind to the investigation?................... 38

Are any of the impugned actions or omissions inconsistent with the standard of legal reasonableness in coronial decision making?................................................................ 40

Concluding remarks........................................................................................................................ 41

HIS HONOUR:

Introduction

After receiving a request from the plaintiff (Professor Helmer) to investigate the death overseas of his wife, Ms Titiana Vasilievna Turitsyna, the coroner assigned to the matter (the Coroner) determined that the death was a reportable death and commenced an investigation.[1]
[1]Pursuant to Coroners Act 2008 ss 4 and 16.

Professor Helmer regarded a Melbourne-based neurologist (the Melbourne neurologist) who had treated Ms Turitsyna as a ‘target of investigation’. Over some seven months, Professor John Helmer sent the Coroners Court of Victoria ten memoranda setting out evidence, submissions and eventually complaints in relation to the conduct of the investigation. He also made an application for access to certain documents,[2] which the Coroner has not yet decided.[3] Professor Helmer contends that the Coroner is unlawfully withholding the documents.
[2]Pursuant to Coroners Act 2008 s 115(2).
[3]Affidavit of Lindsay Spence sworn and filed 19 June 2024, [13].

Professor Helmer’s more recent memoranda included allegations that the Coroner and his staff were engaging in inappropriate and secret communications with the Melbourne neurologist and his lawyer and other complaints about the Coroner. After this, the Coroners Court sent Professor Helmer two letters, the first referring to complaint and appeal avenues, and the second (the 13 March letter) stating that the Coroners Court ‘will not be engaging in any further correspondence with you regarding the issues contained within these memoranda’. Professor Helmer described the 13 March letter as a ‘gag order’.

The following questions arise:

(a) What is the subject matter under review, including but not limited to the two key matters identified by Professor Helmer — the Coroners Court’s failure to provide him with access to documents, and the letter he describes as a ‘gag order’?

(b) Are any of the Coroners Court’s actions or omissions impugned by Professor Helmer inconsistent with:

(i) procedural requirements specified in applicable legislation, including the Coroners Act 2008 ss 8, 9, 33, 115 and Coroners Court Rules2019 rr 44 and 78, or Coroners Court Practice Directions 3 of 2014 and 6 of 2014?

(ii) any requirements of the hearing rule of procedural fairness otherwise applicable in coronial proceedings?

(iii) the standard of legal reasonableness in coronial decision making?

(c) Has anything occurred from which it might be apprehended that the Coroner might not bring an impartial mind to the investigation?

(d) If so, what relief should be granted?

Overview

In sending Professor Helmer the 13 March letter and refusing to engage in further correspondence about the issues in the memoranda, the Coroners Court did not breach any requirements of procedural fairness and did not otherwise act contrary to law.

In my view there has been a misunderstanding between Professor Helmer and the Coroners Court about the meaning of the 13 March letter. Both on the face of the letter and when considering it in its proper context, I do not think it conveys a ‘gag order’. It was a statement by the Coroners Court that it would not respond any further to Professor Helmer’s complaints about it and the Coroner, and the other issues raised in the memoranda. There was nothing unfair or unreasonable about the Coroners Court taking this position.

As for the Coroner’s allegedly unlawful withholding of documents sought in Professor Helmer’s application for access, the Coroner has not yet made a decision on that application.[4] Professor Helmer does not have a present entitlement to the documents the subject of his application for access, and they are not being unlawfully withheld from him. Where a person has unreasonably delayed in performing a public duty, including a duty to consider exercising a discretionary power, that might amount to constructive refusal and might give rise to an order in the nature of mandamus.[5] However, the Coroner’s conduct here does not amount to unreasonable delay in performing a duty. The delay in determination of the application does not infringe the requirements of procedural fairness, either.
[4]Affidavit of Lindsay Spence sworn and filed 19 June 2024, [13].
[5]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (7^th ed, 2022), [16.10]–[16.40].

I am also not satisfied that anything has occurred in this case that might lead a fair-minded lay observer to think that the Coroner might not bring an impartial mind to the questions for determination before him.[6]
[6]Johnson v Johnson (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Charisteas v Charisteas (2021) 273 CLR 289 and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, 166 [50] (Kiefel CJ and Gageler J), 205 [175] (Edelman J), 243 [292] (Jagot J).

The proceeding will be dismissed.

Context

Facts

Professor Helmer’s wife, Ms Turitsyna, was treated by the Melbourne neurologist from August 2022, and was prescribed medication for a condition diagnosed by the neurologist as vestibular migraine. She was also treated from April 2023 by a Moscow-based neurologist.

Ms Turitsyna died in Dubai, United Arab Emirates, on 13 July 2023, aged 61 years.

On 9 August 2023, in a telephone call to the Coroners Court, Professor Helmer asked for an investigation of Ms Turitsyna’s death. The record of the call includes the following:

[Ms Turitsyna] died suddenly and unexpected in a hotel room in Dubai. Only health concern had been long term treatment of vertigo from [the Melbourne neurologist]. The Dubai coronial service completed a preliminary examination (basic bloods, no CT) and determined that given death was not of a suspicious nature, death was natural. … Professor [Helmer] has a sample of the deceased’s hair which he would like analysed for drug toxicity (especially benzos), as this was the treatment his wife had been on for her vertigo, and Professor [Helmer] holds concerns that the drug combination provided to her by [the Melbourne neurologist] has caused toxicity and contributed to his wife’s death. Prof [Helmer] is aware of the limitations given wife has already been buried, but advised her death was unexpected, he has major concerns regarding her treatment for vertigo, and COD was not determined. Given her Melbourne residency, Prof [Helmer] would like her death to be investigated by the Victorian Coroner. He will submit documents to support his Request for Investigation. Once documents have been received, convert case to Request for Investigation and request Medical Records.

Professor Helmer emailed the first of his ten memoranda to the Coroners Court in August 2023. In it, he sought an investigation into the death of his wife. It provided information about the circumstances of Ms Turitsyna’s death, and amongst other things noted that the UAE authorities did not make a finding as to cause of death or conduct an autopsy, noted that the remaining uncontaminated evidence consisted of two hair samples, and attached 13 sets of attachments marked as Attachments A–M.

Attachment G contained four ‘reports’ or letters of the Melbourne neurologist identifying pharmaceuticals prescribed by him for Ms Turitsyna since August 2022.

Attachment I was said (in the covering memorandum) to have been dated or prepared on 11 May 2023, and to set out information that Professor Helmer and Ms Turitsyna discussed with the Melbourne neurologist in a telehealth consultation on 16 May 2023. That document is titled ‘T’s current medication regimen & research’ and was said (in the covering memorandum) to record the drugs and dosages Ms Turitsyna was consuming while in Moscow in the period before she went to Dubai. That document commences with ‘Regimen’, which states:

■ grandaxin (tofisopam) (50 mg) - 3 times a day: 8:00 13:00 and 19:00
■ Cipralex (escitalopram) (10 mg) - l time a day 1,5 tablet (15 mg) - 9:00
■ teraligen (alimemazine) - 1 time - before sleep (22:00).

The memorandum stated that, at the telehealth consultation with the Melbourne neurologist on 16 May 2023, the Melbourne neurologist assured Ms Turitsyna and Professor Helmer that there was no risk to her heart from the combination of drugs the Melbourne neurologist had been supervising until March, and no risk in the new combination of drugs prescribed by the Moscow-based neurologist since April.

Another of the attachments to the memorandum, Attachment J, was an email dated 21 May 2023, in which Professor Helmer said to the Melbourne neurologist:

Thank you for our consultation last week. Tania is also grateful.
On the advice of the Moscow doctors, she’s decided to extend her stay by four more weeks to give time for the proposed new medications to demonstrate effect, and for the dosage to be calibrated. The neurologist has proposed starting Topamax (topiramate) at 25mg for a week, rising to 50mg if need be. The research papers I’ve seen are reporting modest to minimal positive effect. Do you know of any adverse effect?

The memorandum stated that the Melbourne neurologist failed to respond to this question. The memorandum also stated that an expert British toxicologist has opined that there is no data that Ms Turitsyna’s ‘drug cocktail’ was safe, and that they said a benzodiazepine that she was prescribed (tofisopam), and alimemazine, might have adversely interacted with another drug she was prescribed, escitalopram. The memorandum quoted the expert as saying:[7]

‘The more I look into the circumstances’, the British expert concluded, ‘then it seems that prescribing the Escitalopram would be a risk based on knowing possible drug interactions with the other two prescriptions. Without performing Therapeutic Drug Monitoring, i.e measuring the ongoing plasma concentrations of a patient, there would be no way of knowing dangerous Escitalopram concentrations were building up (or not)’.

[7]The passage contained a reference to a journal article by Ju-Seop Kang and Min-Ho Lee, titled ‘Overview of Therapeutic Drug Monitoring’.

The memorandum submitted that was a case to answer on the Melbourne neurologist’s part for professional negligence leading to death and sought that the Melbourne neurologist be required to produce his records to the Coroners Court. Professor Helmer submitted that this provided a sufficient nexus with Victoria under s 15 of the Coroners Act 2008 for a duty to arise for the Coroners Court to investigate.

An affidavit of the Coroners Court’s principal in house solicitor, Lindsay Spence, sworn and filed 19 June 2024 (the Spence Affidavit), indicates that there were eight communications from Professor Helmer to the Coroners Court after the first memorandum and before his second, on 8 October 2023. During that time, other steps including the following also occurred. On 14 September 2023, Coronial Admissions and Enquiries (CAE) received the medical records of Ms Turitsyna from the Melbourne neurologist. CAE is a service which has a number of functions relevant to the coronial process, including coordinating the investigation into a death for a coroner. I infer that this production occurred pursuant to an earlier request by someone at the Coroners Court. A memorandum by Professor Helmer stated that on 14 September 2023, the Coroners Court informed him by telephone that the Coroner had by then requested the Melbourne neurologist to produce patient records.

On 6 October 2023, the Coroner made a decision to commence an investigation into Ms Turitsyna‘s death.[8]
[8]Spence Affidavit, [19].

On 8 October 2023, Professor Helmer sent the Coroners Court his second memorandum. Amongst other things, it expressed concerns regarding the Melbourne neurologist’s alleged non-production of patient records and the Coroners Court’s refusal to engage with Professor Helmer’s questions and requests, and made or reiterated requests for the Coroner to provide to Professor Helmer the details of persons assigned to the case, legal precedents relating to its determinations and certain processes including with relation to submission and disclosure.

One of the requests made in the memorandum was for a:

Direction by the Coroner to the parties on the process of submission and disclosure, and related communications to be followed for requesting and supplying evidence and arguing the law to govern the Sect 4 determination, and comprising the required record for an appeal to the Supreme Court, if that will be warranted.

On 9 October 2023, the Coroners Court emailed Professor Helmer stating that the Coroner had determined that ‘Ms Turitsyna’s death is a reportable death within the meaning of s 4 of the Coroners Act’ and going on to state as follows:

Accordingly, His Honour will now investigate to determine if possible, matters including the cause of death and the circumstances in which the death occurred. The investigation may, or may not, culminate in a public inquest.
In your ‘Second Memorandum’ dated 8 October 2023, you have made multiple demands for information, several of which are couched in combative terms. It is not intended in this email to respond ‘item by item’ to your demands. Rather, we wish to point out that it is important to recognise that the investigation is an independent process directed and superintended by His Honour. Moreover, it is not appropriate for any other person to seek to dictate the steps to be taken or other matters such as the time to be allowed for the provision of documents or other information. The investigation must be permitted to progress in a considered and orderly fashion.
The investigation is in its early stages and will involve, amongst other matters, the further gathering and analysis of medical records. You will be informed concerning the progress of this matter at the significant junctures.

I will return to the theme in the above email later in these reasons. In my view, the email contained important information about the way the investigation should be conducted and the limits of Professor Helmer’s proper role.

On 10 October 2023, the day after the Coroners Court’s email, Professor Helmer sent the Coroners Court his third memorandum. It noted the Coroner’s decision to commence an investigation and requested an inquest. It quoted from some of the correspondence Professor Helmer had conducted with the Coroners Court. One example suffices to give an impression of that correspondence (an email dated 29 September 2023 to an officer of the Coroners Court):

A brief update from my side and some questions for you:
1. The three target medications are now with Dr Copeland and the Centre for Pharmaceutical Research in London. The preparation of the hair samples for the subsequent LC-MS analysis will get under way shortly at the Biotage laboratory in Wales, where the work is under the direction of Lee Williams. We and they are coordinating the process.
2. In our telephone call of the 14th you indicated that the Coroner has requested all patient records from [the Melbourne neurologist]. Can you indicate if you have received them? If so, is there a record of the May 16, 2023, ‘telehealth’ consultation? If you have not received the records, has the Coroner set a deadline for production or enforcement?
3. [The Melbourne neurologist] has informed me he has engaged a lawyer. Has that lawyer or [the Melbourne neurologist] or both communicated with the Coroner in relation to this case? If so, I request a record of the communication.

Amongst other things, the third memorandum also repeated requests for the identification and details of the principal registrar, and for the Melbourne neurologist’s patient records and communications with the Coroners Court, and took issue with the email dated 9 October 2023 from the Coroners Court — in particular with the use in that email of the expressions ‘combative’, ‘dictate the steps to be taken’, and ‘must be permitted to progress in a considered and orderly fashion’. The memorandum referred to the names of the two officers of the Coroners Court who had sent the email, submitted that they were condoning a breach of the Coroners Regulations, and submitted that if they disagreed with that position they should be removed from working on the matter:

… if they mean to imply that they have the authority to dismiss a lawful request from me for transparency and compliance with the judicial practice and procedure in this case, I hereby request that they recuse themselves, and that the Coroner direct their replacement.

The third memorandum referred to Victoria Police SOG Operators 16, 34, 41 and 64 v Coroners Court of Victoria.[9] The submission about the two officers recusing themselves was said to be ‘on the ground of apprehended bias in the email of October 9, 2023, according to the requirement of Kyrou J in the cited case, Victoria Police SOG Operators, at para 47’.
[9][2013] VSC 246 at [36], [38], [40], [45] and [47].

On 10 October 2023, an officer of the Coroners Court, on behalf of the Coroner, issued a ‘Form 4’ to the Melbourne neurologist, requesting a copy of all medical records held by him or his clinic relating to Ms Turitsyna, and a summary of all consultations held with, investigations undertaken, and treatment provided or recommended to Ms Turitsyna by him. In the covering letter, the request was described as a request for ‘further documentation’. Professor Helmer only became aware of this detail by reading the Spence Affidavit in this proceeding. The fact that the Coroners Court’s Form 4 on 10 October 2023 was a ‘further’ request for documents assumed significance in the submissions Professor Helmer made in support of his judicial review application, a point I return to later in these reasons.

On 17 October 2023, the principal registrar at Coroners Support Services sent an email to Professor Helmer which included the following:

I am pleased to introduce myself as the Principal Registrar of the Coroners Court of Victoria. I am happy to be your contact person at the Court and you may send your correspondence directly to me.
I hope you can take reassurance that the coroner and his team are well versed in the legislation and case law surrounding coronial investigations into unexpected deaths. Conducting a coronial investigation into Tatiana’s death will be complex given that she died in Dubai and there was no autopsy. Nevertheless, the coronial team will gather as much information as they can to help determine what happened to Tatiana.
Most coronial investigations take some time and I expect because of the place of death, this one will take more time than usual, and I am afraid you must be patient, while holding on to the fact that the coroner is moving steadily forward with his investigation. As information arrives and the coroner considers it, he will decide on the next steps of the investigation.
It will not be possible for me to update you with every step of the investigation, but certainly you will be advised when major developments occur.
May I respectively ask that you consider the information you send me and keep it succinct to your particular concerns and questions. This will allow me to reply to you more easily, leading to a better result for you.
In the meantime, here is the link to the information required under Section 21 of the Coroners Act 2008. Coroners Process Booklet v9.pdf (coronerscourt.vic.gov.au).

Professor Helmer emailed the principal registrar on 22 October 2023 responding to, and taking issue with, the above email. Amongst other things, the email stated:

Regarding the Coroner’s request for [the Melbourne neurologist] to provide all the patient records for Ms Turitsyna, the time limit for his disclosure is not discretionary; under Section 33, Reg 44(1), and Practice Direction 6/2014, Paras 2 and 8, the time limit for [the Melbourne neurologist]’s production of records has expired. Either he has disclosed the records, or he has not. If the former, I have requested they be disclosed to me, in compliance with the Act, the Rules of Court, and the Coroner’s Practice Direction 3/2014. If the latter, I have requested the Coroner proceed to enforce disclosure with powers to include Section 103.
Either one or the other request for directions is what you call “major developments”; if established in due course, contempt of court is a major development.
It is also a major development if [the Melbourne neurologist] is communicating with the Coroner and the Court directly or through legal counsel in private. In either case, I have requested full disclosure between the parties; in the latter case I request the name and details of the lawyer acting for [the Melbourne neurologist].
Accordingly, you require me to repeat my requests for the Coroner to rule on the papers and issue directions and summons. In the event the Coroner would find it appropriate to hear argument from counsel and consider the particulars, then I request a preliminary directions hearing. This may be unusual at this stage of the proceeding; refusal to disclose material evidence is not less unusual; if allowed to continue it violates the Coroner's powers and Ms Turitsyna’s legal rights.

Also on 22 October 2023, Professor Helmer sent the Coroners Court his fourth memorandum. Amongst other things, it repeated his requests for the Coroner’s ‘direction for implementation of full transparency requirements’ and the Melbourne neurologist’s patient records, and requested identification of his legal representative.

In the Spence Affidavit it is deposed that, on 31 October 2023, the legal representatives for the Melbourne neurologist filed his statement in the Coroners Court, and the next day, the legal representatives produced to the Coroners Court the medical records of Ms Turitsyna. The Melbourne neurologist’s statement and records are amongst the documents sought in Professor Helmer’s Form 45 application to the Coroners Court. They were not tendered into evidence by the Coroners Court in this proceeding. As I note later in these reasons, Professor Helmer attempted to obtain them by issuing subpoenas to the Melbourne neurologist in this proceeding,[10] but leave was refused.
[10]See Plaintiff’s Outline of Submissions filed 6 August 2024, [6].

On 1 November 2023 the principal registrar sent Professor Helmer an email that included the following:

The coroner continues to collect information and medical records from the relevant doctors, including [the Melbourne neurologist]. Timeframes to provide medical material are a matter for the coroner who may extend them if necessary. When the records are received the coroner will consider them and determine the next steps of the coronial investigation. You will be advised of the next steps when the coroner decides on them.
You wish to have the medical material supplied to you when we receive it. The correct procedure to request coronial material from the Coroners Court is via a Form 45 pursuant to Sec 115 of the Coroners Act 2008 (the Act). The link to the online Form 45 is here. Find a Form I Coroners Court of Victoria. I must let you know however, that it is not the usual practice to release medical records to applicants as these records belong to the doctors or medical facilities and are returned to them when the coronial investigation is completed. But it is ultimately a matter for the coroner who will consider an application for material and then make a decision.
You previously requested an inquest into the Tatiana’s passing. Such a request must be done via a Form 26 pursuant to Sec 52 (5) of the Act. Here is the link Find a Form I Coroners Court of Victoria. I have also attached an information sheet about inquests which may help you decide if making an application for an inquest is the best course of action for you.
The coroner has no plans to hold a direction hearing at this stage. If this changes you will be advised.
Please do not hesitate to contact me again if you have further questions.

On 2 and 3 November 2023, Professor Helmer sent the Coroners Court the application for access to documents to which I have already referred. The application was on a ‘Form 45’, pursuant to r 78(3) of the Coroners Court Rules 2019 and s 115(2) of the Coroners Act 2008.

In the field of the Form 45 entitled ‘Details of documents sought’, some incomplete text appeared, but this was supplemented by emails from Professor Helmer later on 2 November 2023, and again on 3 November 2023 to read in full as follows:

1. All documents and records as defined in the Evidence Act 2008 and Health Records Act 2001 and Coroners Court Practice Direction 6 (2014) including (but not limited to) a meeting record, communication record, summary, report, brief, letter, and reply to the Coroners Court, which is in paper or print form, or an email or other form of electronic communication from [the Melbourne neurologist], identified to the Coroners Court and previously requested for disclosure in Memoranda of August 20, 2023, October 8, 2023; October 10, 2023, and October 20, 2023.
2. All documents and records as defined in the Evidence Act 2008 and Health Records Act 2001 and Coroners Court Practice Direction 3 (2014) of all communications between the Coroner, the Coroners Court registrars, solicitors, assistants and other staff, and [the Melbourne neurologist] and his legal representatives, whether by telephone, email, other internet, letter, meeting or another form, subject to Paras 12-16 of the Practice Direction 3 (2014) and previously requested in Memoranda of August 20, 2023, October 8, 2023; October 10, 2023, and October 20, 2023.
3. All documents and records of prescriptions of drugs and medicines signed by [the Melbourne neurologist] to Tatiana Turitsyna, and all records of the dispensing of these prescriptions, held and archived as required by the regulations of the Pharmaceutical Benefits Scheme, including the identifications of the drugs; the dosages prescribed for measure of drug and frequency of patient consumption; any other patient instructions, guidance, or recommendations on the forms by [the Melbourne neurologist] for Ms Turitsyna. If the Coroner has requested these records but has not received them, I request the date of Coroner’s request. If the Coroner has not ordered these records, I request in writing the Coroner’s reason complying with the Act, Court Rules, and Practice Directions.

In the field entitled ‘Reasons for application’, the following text appeared in the Form 45:

1. Reasons for requested full disclosure of material evidence of cause of death have been elaborated in the Memoranda of August 20, 2023, October 8, 2023; October 10, 2023, and October 20, 2023.
2. Reasons in law for compelling disclosure of all records have been elaborated in the Memoranda cited subject to the Coroners Act Sect 21 and 33, Coroners Court Rules Reg 44, and the two Practice Directions 3 and 6 (2014).
3. Reasons for disclosure include the Court’s requirements for open, transparent investigation of the culpable negligence by the practitioner contributing to the cause of death; and unlawful concealment and withholding of evidence materials previously ordered for production by the Court subject to Sect 103 of the Coroners Act (contempt).

Also on 2 November 2023, Professor Helmer lodged his request for an inquest using a ‘Form 26’.

Between 5 November 2023 and 10 March 2024, Professor Helmer sent six further memoranda to the Coroners Court. I will refer to them only briefly.

Professor Helmer’s fifth memorandum was dated 5 November 2023. It contained, amongst other things, submissions relating to correspondence from the principal registrar to the effect that the principal registrar was breaching the applicable statutory provisions, suggestions that the Coroner must be instructing this to occur, a request for the removal of the principal registrar from the case and a repeated request for the identity of the Coroner’s solicitor.

On 30 November 2023, Professor Helmer sent the Coroners Court his sixth memorandum. The sixth memorandum was addressed to the State Coroner. Amongst other things, it requested intervention by the State Coroner, raising issues with the conduct of the investigation including the decision by the Coroner to not hold a directions hearing and to not disclose ‘material information’.

On 1 December 2023, Professor Helmer sent the Coroners Court his seventh memorandum, again addressed to the State Coroner. Amongst other things, it questioned the State Coroner as to whether he had received the sixth memorandum, and whether he authorised the principal registrar and Coroner to ‘foreclose and decide’ the State Coroner’s review of their conduct in this case.

Also on 1 December 2023, the principal registrar of the Coroners Court emailed Professor Helmer, stating relevantly:

I am writing to remind you I am your contact person with the Coroners Court. You may send your correspondence to myself at this email address - [email protected]
[The Coroner] is continuing to gather the material in needs to progress his investigation into Tatiana’s death. The Court has received your request for an inquest and [the Coroner] is considering it and you will be advised when a determination has been made.

On 5 December 2023, the Coroner referred the matter to the Coroners Court ‘CPU Health and Medical Investigation Team’ (or ‘HMIT’) for a triage review of the care and prescription regime provided by the Melbourne neurologist.

On 4 February 2024, Professor Helmer emailed to the principal registrar his eighth memorandum (dated 5 February 2024), addressed both to the Coroner and the State Coroner, asking the principal registrar to relay the memorandum to both. Amongst other things, the eight memorandum alleged violations of the Coroners Act 2008, the Coroners Court Rules 2019, and the Practice Directions of the Coroners Court by the Coroner and the State Coroner, referring to a lack of determination of Professor Helmer’s request for an inquest, and further non-disclosure of documents. The memorandum stated that the refusals to reply to the earlier memoranda (footnoted references to Practice Directions 3 and 6 of 2014, and to the Coroners Act 2008, omitted):

… amount to evidence of wilful intention on the parts of [the Coroner and State Coroner] to act in secret in violation of these substantive provisions and procedural requirements; protect the [Melbourne neurologist] from the Act’s requirements under Section 33 and Court Rules Reg 44; and thereby give rise to favouritism, prejudice, and bias on the parts of [the Coroner and State Coroner] in violation of the Act, Sections 9 and 55.

On 9 February 2023, the Coroners Court responded to Professor Helmer’s request for an inquest, stating that the Coroner had decided not to make a decision as to whether an inquest should be held until further investigations have been completed, giving reasons.

Also on 9 February 2024, the Coroner made a full referral to the HMIT to review the entirety of the medical records and to provide an opinion with respect to the appropriateness of Ms Turitsyna’s medical regime.[11]
[11]Spence Affidavit, [42].

On 19 February 2024, Professor Helmer sent the Coroners Court his ninth memorandum, again addressed both to the Coroner and the State Coroner. Amongst other things, it again alleged breaches of the Coroners Act 2008, the Coroners Court Rules 2019, and the Practice Directions, referring to the Coroner’s decision to not make a decision on the pending request for inquest, and lack of disclosure of the records and communications requested by Professor Helmer. The memorandum requested that the Coroner disclose the documents and records requested by Professor Helmer in his Form 45 filed in November 2023.

Up to 8 March 2024, the Spence Affidavit records that there had been about 45 communications between Professor Helmer and the Coroners Court, about 17 of which were from the Coroners Court. In this passage of my reasons above, I have only referred to the details of some of these communications.

On 8 March 2024, the Coroners Court wrote to Professor Helmer in response to the ninth memorandum, including as follows:

Judicial Misconduct
In respect of your allegation of misconduct by [the Coroner] in this case, I advise that the Judicial Commission of Victoria, an independent body established to investigate complaints about judicial officers, is the appropriate body for you to contact regarding your complaint. Further information is available on the Judicial Commission’s website at vic.gov.au.
Review of Matter
In respect of the range of other allegations, including of ‘favouritism, prejudice and bias’, ‘denial of section 9 rights under the Act and abuse of the coronial process’ and ‘apprehended and demonstrable bias’, you may wish to seek legal advice in respect of whether you have rights of appeal or review regarding these matters.

On 10 March 2024, Professor Helmer sent the Coroners Court his tenth memorandum, again addressed both to the Coroner and the State Coroner. Amongst other things, it repeated the requests in Professor Helmer’s Form 45, elaborated upon the bases and conduct upon which Professor Helmer alleged breaches of the Coroners Act 2008, the Coroners Court Rules 2019, and the Practice Directions, and referred to judicial review of the alleged misconduct by the Coroner.

On 13 March 2024, an officer of the Coroners Court sent a letter to Dr Helmer (the 13 March letter), stating:

I refer to your document titled “TENTH MEMORANDUM FOR STATE CORONER JOHN CAIN & [the Coroner]” dated 10 March 2024 in respect of the reportable death of Tatiana Vasilievna Turitsyna (COR 2023 4769).
I refer you to our correspondence dated 8 March 2024, and further advise that the Coroners Court will not be engaging in any further correspondence with you regarding the issues contained within these memoranda.

On 31 March 2024, Professor Helmer commenced this proceeding by filing an originating motion for judicial review in the Supreme Court.

Since the commencement of the proceeding, the investigation has been in abeyance, save that on 7 and 14 May 2024 the HMIT responded to the Coroner’s referral of 9 February 2024.[12]
[12]Spence Affidavit, [42]–[44].

Legal framework

The Coroners Court is established under s 89(1) of the Coroners Act 2008. It consists of the coroners, judicial registrars and registrars of the Coroners Court: s 89(2). A coroner or registrar constitutes the Coroners Court when exercising functions under the Act other than functions under s 105: s 89(3). It is an inquisitorial Court: s 89(4).

Section 9 of the Act provides that the coronial system should operate in a fair and efficient manner, and s 8 sets out six factors to which a person should have regard, as far as possible in the circumstances, when exercising a function under the Act. They include:

(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e)that there is a need to balance the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information;
(f)the desirability of promoting public health and safety and the administration of justice.

Pursuant to s 14, a coroner may investigate a death that is or may be a reportable death if the death appears to have occurred within 100 years before it was reported to a coroner. This includes a power to investigate whether a death is a reportable death. Pursuant to s 15, a coroner must investigate a death that is a reportable death that occurred or was caused in Victoria, that occurred within 50 years before the death being reported and where an interstate coroner has not investigated, is not investigating and does not intend to investigate the death. Section 4 contains the definition of ‘reportable death’.

The Act provides coroners who are investigating a death with a number of powers to aid their investigations, including a power in s 42 to request the provision of a document or the preparation of a statement from a person that is required for the purposes of an investigation.

The task imposed by the Act upon a coroner who is investigating a death is to make findings under s 67(1) as to the identity of the deceased (s 67(1)(a)), the cause of the death (s 67(1)(b)) and the circumstances in which the death occurred (s 67(1)(c)). The coroner must make the findings under s 67(1) if it is possible to do so. Coroners are additionally empowered to make comment on any matter connected with the death under investigation (s 67(3)) and to make recommendations on any matter connected with a death (s 72(2)). The Act does not require that every death which is reported to the coroner and which is investigated under the Act proceed to an inquest. Rather, s 52(2) of the Act sets out the circumstances in which it is mandatory to hold an inquest into a death.

The Coroners Act 2008 does not prescribe the manner in which a coroner is to conduct an investigation into a death. Because the investigative function is inquisitorial, the coroner must ‘be an active investigator of the death in question’.[13] There are no parties to an inquest (although interested parties may be given leave to appear), and ‘the responsibility is the coroner’s alone’.[14] Further, as stated by Tate JA in Priest v West:

The power of the Coroners Court to inform itself as it thinks fit means that its inquiries are not dependent on the “case” presented by the parties. Rather, a coroner has an obligation, independently of the positions taken by the parties, to perform the statutory functions of determining, if possible, the cause and circumstances of death.[15]
…
The Parliament intended that a coroner actively participate in an inquest, and not be dependent on the submissions made by the parties, by conferring the power to determine the witnesses to be called and the relevant issues to be addressed.[16]

[13]Priest v West (2012) 40 VR 521, 524 [3] (Maxwell P and Harper JA).

[14]Ibid.

[15]Ibid 560 [169] (Tate JA).

[16]Ibid 561 [171] (Tate JA) (citations omitted).

The Coroners Court submitted that the above principles apply equally to a coroner’s conduct of an investigation, and I agree.

Because the responsibility for the investigation is the investigating coroner’s alone, it would be inappropriate for any person other than the coroner to dictate or attempt to dictate the steps to be taken (or not taken) in the course of a coronial investigation.

An investigating coroner needs to remain independent, and be seen to be independent, of persons who are interested in the outcome, and this includes a senior next of kin or a person on whose request an investigation is commenced.

That means that even a senior next of kin on whose request an investigation was commenced must be kept at a distance from the steps being taken in the investigation, and must not dictate those steps. It also means that it may be appropriate for a coroner not to disclose all information obtained during the investigation to such a person, and to conduct communications with third parties that are not revealed to such a person.

The State Coroner is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court: s 95A(1); and may assign duties to a coroner: s 96(1). A coroner must carry out the duties that are from time to time assigned to him or her by the State Coroner: s 96(2).

Under s 21 of the Act, as soon as practicable after the commencement of a coronial investigation into a death, the principal registrar must ensure that the prescribed information in relation to the coronial process is provided to the senior next of kin: s 21(a). The prescribed information is described in reg 11 of the Coroners Regulations 2019, and is general in nature. Most of the items of information in question are irrelevant to this proceeding. One of the items is ‘what the purpose of a coronial investigation is’ (including certain specified matters such as what the coroner must find if possible, and that the findings, comments and recommendations made following an inquest may be published on the internet); and another item is ‘access to documents under the Act’.[17]
[17]Coroners Regulations 2019 reg 11(c), (m).

Section 115 of the Coroners Act 2008 relevantly provides:

115 Access to documents
(1) Unless otherwise ordered by the coroner, the principal registrar must—
…
(b) if an inquest is to be held, provide an interested party with a copy of the coronial brief.

(2) A coroner may also release a document to—
(a)an interested party if the coroner is satisfied that the party has a sufficient interest in the document;

…
(6) A document relating to the investigation of a death or a fire that is held by a coroner must not be released by a coroner except as permitted under this Act or any other law.
(7) In this section, coronial brief means a brief of evidence that is prepared for a coronial investigation and contains the following (if available)—
(a) a statement of identification by an appropriate person;
(b) any reports given to a coroner as a result of a medical examination;
(c) reports and statements that the coroner investigating the death or fire believes are relevant to a coronial investigation;
(d) other evidentiary material that the coroner investigating the death or fire believes is relevant to the coronial investigation;

(e) any material prescribed by the rules or the regulations.
(8) For the purposes of subsection (7), a coronial brief does not include any part of a medical file that the coroner considers to be irrelevant to the coronial investigation.

Rule 78 of the Coroners Court Rules 2019 relevantly provides:

78 Access to documents
(1)For the purposes of section 115(2)(f) of the Act, a coroner may release a document to any person if the coroner is satisfied that the person has a sufficient interest in the document.
(2)A person or a statutory body specified in section 115(2) of the Act may apply to a coroner for release of a document.

(3) An application under paragraph (2) must be in Form 45.
(4)For the purposes of section 115(1) or (2) of the Act, a coroner may order that the release of a document is subject to the conditions placed on that release.

(5) An order made under paragraph (4) must be in Form 46.

There are two provisions relevantly referring to a deceased’s medical practitioner, relied upon by Professor Helmer — s 33 of the CoronersAct 2008 and r 44 of the Coroners Court Rules 2019. Section 33 provides:

33 Registered medical practitioner to assist
(1) This section applies to a death that is being investigated by a coroner.
(2) A registered medical practitioner—
(a) who was responsible for a person’s medical care immediately before that person's death; or

(b) who was present at or after the person’s death—
must give the coroner any information or assistance that the coroner requests for the purposes of the investigation.
Penalty: 20 penalty units

The Coroners Court Rules r 44 provides:

44 Registered medical practitioner to assist
(1) A registered medical practitioner to whom section 33 of the Act applies must give the coroner the information or other assistance requested by the coroner in respect of an investigation of a death no later than 7 days after the coroner's request for information or assistance has been made of the registered medical practitioner.
(2) If the coroner has requested information, a registered medical practitioner to whom section 33 of the Act applies must give the coroner the information in writing or any other form specified by the coroner.

Neither the Act nor the Coroners Court Rules 2019 provide a time limit for the determination of requests for documents under s 115(2) and reg 78(2).

Where a matter proceeds to an inquest, there are additional provisions of note. A coroner may give a person leave to appear as an interested party at an inquest,[18] and the interested party may make submissions proposing witnesses to be called for the coroner to consider.[19] The coroner will determine the relevant issues,[20] and must conduct an inquest in a way that, as far as is practicable, makes the inquest comprehensible to interested parties and family members who are present.[21]
[18]Coroners Act 2008 s 56.
[19]Ibid s 66(1).
[20]Ibid s 64(b).
[21]Ibid s 65(b).

This proceeding

On 31 March 2024, Professor Helmer commenced this proceeding by filing an originating motion for judicial review seeking:

(a) a review of the Coroner’s decision of 13 March 2024, being the 13 March letter;

(b) a review of the conduct, determinations, omissions and decisions by the Coroner to not respond to Professor Helmer’s Form 45 and to not give reasons for nondisclosure of the documents requested by the Form 45;

(c) an order that the case be remitted to another coroner to determine remedy for violations of the Coroners Act 2008, the Coroners Court Rules 2019, and the Practice Directions.

The grounds in the originating motion (my reformatting) are:

Coroners Act 2008 Section 9 (“Fairness and efficiency”) is the governing statutory ground of action in requiring “the coronial system should operate in a fair and efficient manner”; this standard is required to be implemented according to the factors set down in Section 8 (“Factors to consider”), specifically in this case those of sub-sections:
(d)(information on investigation particulars),
(e)(public interest), and
(f)(administration of justice),

which have been violated by [the Coroner] in his decision of March 13, 2024; and
in his unreasonable delay and continuing refusal to make the disclosures requested by Form 45 since November 2-3, 2023; and
his refusal to give reasons thereto when the compliance of the medical practitioner under investigation is subject to the Act Section 33(2a) is requested and required.

Together, these mistakes, omissions, actions and inaction, culminating in the March 13, 2024, decision make the ongoing investigation impossible according to the statutory law and the applicable Court rule and practice requirements for procedural fairness, as interpreted in
the case precedent adjudicated by this Court and judgement of Almond J in Carter v Coroners Court of Victoria & Anor [2012] VSC 561 (9 November 2012);
for the right of the Senior Next of Kin to make submissions of evidence and of law to the Court as ruled in Hecht v Coroners Court of Victoria (2016) VSC 635 (17 November 2016);
for the requirements of procedural fairness and natural justice in coronial proceedings which have been decided in Neumann v Hutton (2020) QSC 17;3 QR 419 (20 March 2020), Commissioner of Police v No Respondent; Commissioner of Police v Coroners Court of South Australia (2020) SASCFC 65; 138 SASR 535 (1 July 2020), and Foote v Coroner’s Court of the Act (2020) ACTSC 141; 352 FLR 290 (2 June 2020);
for application of the relevance standard to limiting unfettered discretion by coroners as decided by the majority in [Annetts] v McCann (1998) 170 CLR 596; and
for application of the reasonableness standard to the coroner’s decision-making as set down in Leahy v Barnes [2013] QSC 226 (27 August 2013) and R v Matterson; Ex parte Moles [1994] 4 Tas R 87.

An originating motion for judicial review invokes the Court’s jurisdiction to grant orders in the nature of the prerogative writs — and associated declarations and injunctions — by way of its supervision of inferior courts and tribunals and others exercising public power in Victoria, in accordance with the procedures prescribed in Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. It is evident from the grounds of the originating motion that the two key legal doctrines Professor Helmer invokes in support of his application are the requirements of procedural fairness and the standard of legal reasonableness. It is also clear that he seeks review of the 13 March letter, the Coroner’s failure to decide Professor Helmer’s Form 45 application for access to documents, and failure to give reasons for that delay.

The originating motion does not, however, identify what orders are sought about those acts and omissions, save for seeking an order remitting the matter to another coroner to determine remedies. It may perhaps be intended that the Court would consider quashing any operative decision in the 13 March letter, declaring that a reasonable apprehension of bias precludes the Coroner from further conducting the investigation and ordering (by way of mandamus) that a decision be made on the Form 45 application, and the investigation continue, in the hands of another coroner. For the reasons that I explain below, it has not been necessary for me to reach any views about whether such remedies were sought or should be ordered, because I have concluded that no grounds for granting them, or any equivalent declaratory or injunctive relief, have been established.

The Coroners Court appeared, assuming the role of a Hardiman respondent, taking no position as to the merits of Professor Helmer’s claims in the proceeding.[22]
[22]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

Professor Helmer made some submissions that, in my view, are manifestly irrelevant to my determination of the real issues raised by the proceeding. They can be dismissed without detailed consideration, but for completeness I note them below:

(a) Firstly, Professor Helmer criticised the Court’s failure to issue certain subpoenas Professor Helmer sought to have issued in the Supreme Court proceeding. The subpoenas appear to have included attempts to obtain the same or substantially the same documents Professor Helmer seeks in his Form 45 application for production of documents in the proceeding in the Coroners Court, but directly from the Melbourne neurologist.[23] Professor Helmer did not establish how this material could permissibly have been considered in a proceeding for judicial review of this kind. In any event, the judicial review application was not an appeal from any decision of a judicial officer of this court refusing leave to issue subpoenas. I have decided this proceeding on the basis of the material before the Court. I have not taken Professor Helmer’s criticisms of the refusal to allow him to issue subpoenas into account in deciding whether he has demonstrated reviewable error on the part of the Coroners Court.

(b) Secondly, Professor Helmer’s reply submissions also criticised the adoption by the Coroners Court of a Hardiman position in this proceeding and the citation of various authorities in submissions that were filed on behalf of the Coroners Court on the grounds that they were irrelevant and it was an abuse of process to rely on them. I reject these submissions. It was reasonable for the Coroners Court to adopt a Hardiman position. A Hardiman respondent may assist a court with references to applicable authorities. The remarks O’Meara J made in a another case where the Coroners Court adopted this role are equally applicable to this case: “…the balanced and helpful approach of the present respondent, and counsel who appeared on its behalf, are to be commended”.[24]

Consideration

[23]See Plaintiff’s Outline of Submissions filed 6 August 2024, [6].

[24]Farrar v Coroners Court of Victoria [2021] VSC 842, [32] (O’Meara J).

What is the subject matter under review?

Professor Helmer’s originating motion identified the subject matter of the judicial review proceeding in this Court as follows:

(a) an alleged decision of the Coroner on 13 March 2024 ‘to stop all communication with and disallow submissions of evidence and of law by the Plaintiff – Senior Next of Kin to the Coroners Court of Victoria in the investigation of Case COR 2023/4769 (death of Tatiana Turitsyna)’; and

(b) alleged ‘… conduct, actions, determinations, omissions, and the decision by [the Coroner] refusing to respond to the Form 45 application for access to coronial documents, submitted on November 2-3, 2023, and by the decision of [the Coroner] not to decide, not to respond, not to give reasons for his refusal to disclose the documents requested by Form 45 (pursuant to Coroners Court Rule 78(3) and Section 115 of the Coroners Act), as repeated by Plaintiff-Senior Next of Kin's request to the Coroner of December 1, 2023, by his request to the Coroner of February 9, 2024, by his request to the Coroner of March 8, 2024; and culminating in [the Coroner]’s decision of March 13, 2024, to stop all communication with the Plaintiff-Senior Next of Kin’.

As is evident from the way the second subject matter is described, the two matters are linked. The second described subject matter relating to delay in deciding the Form 45 application is said to have ‘culminated’ in the alleged decision to stop all communication.

This connection was also evident in Professor Helmer’s submissions. For example, a key submission of Professor Helmer at the hearing was that I should infer that the Melbourne neurologist had failed to disclose his record of the significant telehealth consultation on 16 May 2022 in the first tranche of record production he made to the Coroners Court, that the Coroner was aware that this had occurred, and had therefore requested production again, and that this had been concealed from Professor Helmer, and could only now be inferred from an affidavit the Coroners Court had filed in this proceeding. Professor Helmer put that submission this way:

In summary, and with the benefit of the comparisons of plaintiff’s communications to the Coroner and the retrospective disclosures which the Court have now received from [the Coroner] on June 2024, we know that the Coroner knew there was a problem of withholding by [the Melbourne neurologist] and knew [Professor Helmer] knew. What [the Coroner] then did was to request [the Melbourne neurologist to] submit his records in ‘their entirety’ but at the same time concealed this from [Professor Helmer]. He continued to conceal the communications with [the Melbourne neurologist] and with [his lawyer] in a fashion and with the result that there was a gravely unlawful coverup.
This coverup was finalized by the gag order of March 13, 2024, in which [the Coroner] announced his refusal to consider any further submissions from the senior next of kin, myself.[25]

[25]Taken from Professor Helmer’s ‘Trial Presentation November 1, 2024 Script’.

In this way, Professor Helmer’s submissions connected his two key complaints: that the Coroner was unlawfully withholding access to documents produced by and relating to the Melbourne neurologist, and that the Coroners Court had issued a ‘gag order’ against Professor Helmer.

At the outset, I note my view that both the descriptions in the originating motion of what happened are incorrect. The 13 March letter did not state or otherwise convey a position that the Coroner has decided that all communication with Professor Helmer is stopped and all his submissions of evidence and law are disallowed, and the Coroner had not refused to respond to Professor Helmer’s application for access to documents.

Rather, in my view, what had occurred was that the Coroners Court had advised Professor Helmer it would no longer send him any correspondence about his complaints regarding the Coroner and the other submissions in his ten memoranda, and the Coroner had not yet decided Professor Helmer’s Form 45 application to access the documents.

What are the implications of the disjunction between Professor Helmer’s description of the subject matter of the proceeding and my own characterisation of the facts?

It has been necessary for me to relate Professor Helmer’s grounds of challenge advanced in support of his judicial review application to what I regard as having occurred, and then to reach conclusions about whether grounds for the grant of relief have been established.

I have done this under each of the following headings.

Are any of the impugned actions or omissions inconsistent with procedural requirements specified in applicable legislation, including the Coroners Act ss 8, 9, 33 and Coroners Court Rules r 44, or with Coroners Court Practice Directions 3 of 2014 and 6 of 2014?

Professor Helmer claims that the Coroner has ‘violated’ ss 8 and 9 of the Coroners Act, and condoned a breach and 33 of the Coroners Act and Coroners Court Rules2019 r 44. Those provisions are summarised or set out earlier in these reasons.

In my view, the Coroners Court and the Coroner have done no such thing.

Sections 8 and 9 of the Coroners Act 2008 contain factors that should be taken into account in exercising functions and a statement of objective. It has not been established that the Coroner failed to take any such factor in s 8 into account in connection with the Form 45 application or the 13 March letter. Even if the Court were to form the view that the delay in deciding the Form 45 application or the sending of the 13 March letter were inconsistent with those factors and that objective, that in itself would not mean that they had been ignored by the Coroner or the Coroners Court, or that an order by way of judicial review would be available.

Professor Helmer also claims ‘violations’ of the Coroners Court Practice Directions 3 of 2014 and 6 of 2014. The notion of a violation or contravention of a Practice Direction by a court to which it applies is a somewhat elusive one (because such documents are generally guidelines setting expectations that may be varied by the court, and inconsistent action would not necessarily infringe any law in any event). Howsoever that may be, I have considered Professor Helmer’s contention that these directions have been breached. I am satisfied that the Coroner and Coroners Court have not breached them, for the following reasons.

Practice Direction 3, [14], relevantly states ‘All communications with a registrar, coroner’s solicitor and/or a coroner’s assistant must be open and be in a manner that can be shared with all interested parties’. That does no more than indicate to persons wishing to communicate with the Coroners Court that they cannot place limitations on the ability of the Coroners Court to share their communications with other interested parties should the court so decide. It does not compel the Coroners Court to share all such communications with all interested parties.

Practice Direction 6 of 2014 relates to the exercise of power to obtain medical records. It contains nothing requiring them to be shared with interested persons, including a senior next of kin.

Professor Helmer submitted that the ‘refusal’ by the Coroner to disclose patient records and related documents requested in the Form 45 application was ‘unlawful’, as well as being was evidence of ‘unlawful bias, prejudice and favouritism’.[26]
[26]See, eg, Plaintiff’s Outline of Submissions filed 6 August 2024, [3].

As already noted, I do not regard the Coroner’s treatment of the Form 45 application as a refusal. He has not decided it yet. I address the argument that his treatment of the Form 45 showed bias, prejudice or favouritism under a separate heading, later in these reasons. In this section, I address the question: was the Coroner’s treatment of the Form 45 ‘unlawful’, in the sense that the Coroner was withholding documents to which Professor Helmer was entitled?

In my view, none of the provisions of the Coroners Act 2008 and Coroners Court Rules 2019 identified in the originating motion provide Professor Helmer with an entitlement to the documents sought in his Form 45 application. Further, I am not persuaded that anything in the Coroners Court’s Practice Directions 3 and 6 of 2014 confers an entitlement upon Professor Helmer to those documents, either.

In my view, Professor Helmer’s argument that he has an entitlement, and that the documents are unlawfully withheld from him, boils down to the contention that the Coroner has unreasonably delayed exercising a discretionary power to which a duty to decide the application attaches. At most, Professor Helmer would only be entitled to compel an exercise of the discretion, not any particular outcome.

In other words, a coroner’s power to provide documents under s 115(2) of the Coroners Act 2008 is discretionary. There is no duty to provide documents sought under that provision, although there is probably an implied duty to consider and decide an application for provision of documents, and this must be done within a reasonable time.

Although no decision has yet been made on the Form 45 application, there might be a ‘constructive refusal’. There will be a constructive refusal if there has been unreasonable delay, in which case mandamus might be ordered to require the Coroner to decide the application. An order in the nature of mandamus may be available where a person has unreasonably delayed in performing a public duty, including a duty to consider exercising a discretionary power.[27]
[27]Aronsen, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (7^th ed, 2022), [16.10]–[16.40].

This facts of this case fall far well short of unreasonable delay in performing that duty. Professor Helmer applied for access to the documents on 2-3 November 2023 and commenced this proceeding on 31 March 2024. As the Spence Affidavit and the ‘Facts’ section of these reasons shows, much occurred during that period. Further, the categories of documents sought in the application were multifaceted and extensive. Considerable complexity arose from the application. Further, at the time this proceeding was commenced, there were inquiries being pursued at the request of the Coroner.

It must reasonably be expected that the Coroner would wish to consider the contents of the documents sought by Professor Helmer’s application before deciding whether to release them, as well as the ten memoranda evidencing the very active role Professor Helmer seeks to perform in the investigation, and the potential implications of production of all or any of the documents to Professor Helmer at the stage the investigation had reached. The Coroner might wish to consider whether production might be expected to help or hinder the investigation, or prejudice any inquest, and matters of that kind.

The Coroner was and is not required to explain his deliberations about the Form 45 application to Professor Helmer. Professor Helmer’s complaint about the Coroner failing to provide his reasons for delay has no merit.

In all the circumstances of the case, Professor Helmer has not demonstrated that the Coroner was unreasonably delaying the making of his decision about the documents at the commencement of this proceeding.

For completeness, I note that Professor Helmer’s affidavit in the proceeding stated:

On February 19, 2024, I submitted my Ninth Memorandum in this case addressed to [the Coroner and State Coroner]. This pointed out that the Form 45 application was governed by Section 115 of the Act and Rule 78; that [the Coroner]'s refusal to disclose was “knowing” and “reckless” under Section 115(5); and that the violations of [the Coroner and principal registrar] were penalty offences punishable by a fine of $11,539. They were given one week to remedy their violations, purge their bias, and respond to the Form 45 requests for disclosure. The deadline was February 26, 2024. [28]

[28]Affidavit of John Helmer affirmed 19 March 2024 and filed 31 March 2024, [24].

Later in his affidavit, Professor Helmer explained his argument: he contended that it was open on the authorities to contend that the Coroner and State Coroner were in breach of s 115(5) of the Coroners Act in relation to the application for access documents,[29] even though no decision had been made on that application and no condition imposed on access to the documents. Section 115(5) provides that a person ‘must not knowingly or recklessly fail to comply with any condition placed on the release of a document under this section.’ The argument based on s 115(5) has no merit, if only for the reason that no release of documents has occurred, and conditions have been imposed.
[29]Ibid [29].

This aspect of the originating motion has not been established: Professor Helmer has failed to demonstrate that either the 13 March letter or the Coroner’s treatment to date of Professor Helmer’s Form 45 application is ‘unlawful’ in the sense of breaching any of the provisions he relied upon.

For completeness, I note that Professor Helmer also submitted that there had been ‘secret’ communications that breached the Coroners Act.[30] I address that contention under the heading relating to apprehended bias, below.

Are any of the impugned actions or omissions otherwise inconsistent with the requirements of the hearing rule of procedural fairness in coronial proceedings?

[30]Plaintiff’s Outline of Submissions [1]

As mentioned above, procedural fairness was one of the key doctrines invoked by Professor Helmer in support of his originating motion.

Where a statute confers power upon a public official to prejudice a person’s rights, interests, or legitimate expectations, the rules of natural justice (ie, procedural fairness) regulate the exercise of that power unless excluded by plain words of necessary intendment.[31]
[31]Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Dean and McHugh JJ) (‘Annetts v McCann’).

Procedural fairness consists of two principal rules, the hearing rule (archaically, audi alteram partem) and the rule against bias (archaically, nemo judex in causa sua). Under this heading, I will address the hearing rule and its implications in this case.

Generally speaking, where the hearing rule applies to a body in respect of the making of a decision that will prejudice a person, the body must give notice to the person of any adverse matter that it proposes to take into account and offer the person a reasonable opportunity to respond to such matters before making a decision.[32] It has long been recognised that a coroner ‘is bound to give an opportunity [to be heard] to those who may be affected by his decision’,[33] but this begs the question of what particular content the hearing rule is likely to have in all the circumstances of the case.
[32]Carter v Coroners Court of Victoria [2012] VSC 56, [16] (Almond J).
[33]Korp v Deputy State Coroner [2006] VSC 282 [23], [44] (Gillard J).

For example, a coroner ‘conducting an inquest [under the Act] must comply with the hearing rule of natural justice in relation to an interested person’,[34] by providing an opportunity to the interested person to persuade the coroner against making a finding that would be adverse to the reputation or other interests of the person. A coroner is required by the hearing rule to give that person or (if the person is deceased) their family representative notice of the potential adverse finding and a reasonable opportunity to persuade the coroner against making it.[35]
[34]Danne v Coroner [2012] VSC 454, [20] (Kyrou J), citing Annetts v McCann, 598, 600; Harmsworth v State Coroner [1989] VicRp 87; [1989] VR 989, 994 (Nathan J); Korp v Deputy State Coroner [2006] VSC 282 [23], [44] (Gillard J), and noting s 66 of the Act.
[35]See, Annetts v McCann, 598–599 (Mason CJ, Dean and McHugh JJ); Hecht v Coroners Court of Victoria [2016] VSC 635 [51] (J Forrest J); Mortimer v West (Deputy State Coroner) (2018) 56 VR 608, 644 [124] (Tate and McLeish JJA, McDonald AJA).

Thus, in Annetts v McCann, a majority of the High Court granted prohibition and injunction preventing a coroner from reporting on two deaths until the family of one of the deceased had been allowed to make submissions or the coroner clarified whether he intended to make any adverse findings about the deceased family member.

To take another example, in a case of competing applications for the release of a body under s 48 of the Coroners Act 2008, at least where a material dispute is apparent, the material on which each applicant relies should be exchanged so that each applicant is given a reasonable opportunity to respond to the material if so advised before a decision is made.[36]
[36]Carter v Coroners Court of Victoria [2012] VSC 56, [17] (Almond J).

But does the hearing rule require the Coroner to comply with any of the demands Professor Helmer has made in his ten memoranda?

In my view, the hearing rule does not go so far.

The content of procedural fairness in coronial proceedings depends on the facts of each case, but generally a person’s right to be heard will be satisfied where the person is given notice of any key questions that may be decided in a manner that is adverse to their interests, and an opportunity to make meaningful submissions in opposition to any potential adverse findings to be made on those questions.[37] This falls a long way short of enabling an interested person to be kept informed of all material being received by the Coroners Court on an ongoing basis so the person may make submissions about the course of the investigation, in the manner that Professor Helmer’s memoranda seek to do.
[37]See Annetts v McCann, 598–599.

True it is that the investigation was commenced at Professor Helmer’s request, and Professor Helmer has advanced submissions that the Melbourne neurologist has a case to answer, but in my view procedural fairness does not require that Professor Helmer be informed of all documents produced by the Melbourne neurologist (including his statement), all communications with him or his lawyer, and other such details of steps taken in the investigation, on an ongoing basis.

As already noted, coronial proceedings are inquisitorial, not adversarial.[38] Professor Helmer does not have a role akin to a claimant in civil proceedings or a prosecutor. The Coroner is responsible for the direction of the investigation. The Coroner must remain independent from interested persons such as Professor Helmer. In my view, Professor Helmer’s memoranda seek a role for Professor Helmer in the investigation that is inconsistent with these principles.
[38]An inquest has been regarded as a hybrid process involving adversarial elements, but the present case has not yet progressed to that point.

None of the authorities relied upon by Professor Helmer in his originating motion,[39] or any other case he took me to,[40] suggest that a Coroner who fails to comply with demands such as the ones contained in his memoranda might be infringing the requirements of procedural fairness.
[39]Carter v Coroners Court of Victoria [2012] VSC 561, see especially [13]–[22] (Almond J); Hecht v Coroners Court of Victoria [2016] VSC 635, see especially [51]–[62] (J Forrest J); Neumann v Hutton (2020) 3 QR 419; [2020] QSC 17, see especially [11]–[17] (Martin J); Commissioner of Police v No Respondent; Commissioner of Police v Coroners Court of South Australia (2020) 138 SASR 535; [2020] SASCFC 64, see especially [77]–[78] (Hughes J, Kourakis CJ and Parker J agreeing); Foote v Coroners Court of the ACT [2020] ACTSC 141, especially at [42]–[49] (McWilliam AsJ); and Annetts v McCann.
[40]Including any of those in the Plaintiff’s List of Authorities dated 7 August 2024.

Procedural fairness conveys the notion of a flexible obligation. What the duty to act fairly requires in each case depends on the governing statute and the circumstances of the case.[41]
[41]Kioa v West (1985) 159 CLR 550, 585 (Mason J), 614–616 (Brennan J).

In the circumstances of this case, did anyone acting on behalf of the defendant fail to accord procedural fairness to Professor Helmer or take any steps to make it inevitable for such failure of procedural fairness to occur?

In determining this question, I will consider the two key sets of conduct Professor Helmer complains of in turn.

13 March letter

Professor Helmer submitted that the 13 March letter was a ‘gag order’ upon him to ignore, deter, and prevent his submissions that are material to the Coroner’s investigation of Ms Turitsyna’s death.[42]
[42]See, eg, Plaintiff’s Outline of Submissions filed 6 August 2024, [2].

In my view there has been a misunderstanding between Professor Helmer and the Coroners Court about the meaning of the letter. It is not a ‘gag order’. I do not read it as denying Professor Helmer any further opportunity to make submissions about his wife’s death or the investigation. I consider that the Coroners Court was, rather, stating that it would not send any further correspondence responding to the matters that had been raised by Professor Helmer in the ten memoranda he had sent it up to that time.

As emerges from the ‘Facts’ section of these reasons, above, the immediate context of the letter was as follows. About three weeks earlier, Professor Helmer had submitted his ninth memorandum, which contained complaints and allegations about the Coroner, and was not directed to the principal registrar (as had previously been requested by the principal registrar) but addressed directly to the Coroner and State Coroner. About 18 days later, the director of legal services at the Coroners Court responded by setting out information about the Judicial Commission of Victoria and suggesting Professor Helmer might wish to seek legal advice about whether he had rights of appeal or review. Professor Helmer then sent his tenth memorandum repeating his complaints in his earlier memoranda and somewhat expanding on them. The 13 March letter was sent as a result of the tenth memorandum.

The 13 March letter relevantly stated that the Coroners Court would not engage in any further correspondence with Professor Helmer regarding the issues contained within the memoranda. It did not state that Professor Helmer could not send any further submissions, or that the Coroners Court would ignore his submissions. It did not state that the Coroners Court would not give Professor Helmer advance notice if the Coroner were to complete making an adverse finding against him. It did not state that Professor Helmer would be excluded from the hearing of any inquest (should there be one), or the making of any submissions in any inquest.

I do not consider the 13 March letter to have been procedurally unfair. In the lead up to the 13 March letter, the Coroners Court engaged with Professor Helmer, including by emailing and telephoning him from time to time. The Coroners Court was keeping Professor Helmer broadly informed of the progress of the matter. Professor Helmer clearly wished to be more closely involved. It was only after continued exchanges of correspondence, and allegations being made against the Coroner, State Coroner and staff, that the 13 March letter was ultimately sent. In my view, to the extent that the Coroners Court responded to the memoranda, its responses were sufficient and appropriate. For example, this included provision of information on the correct procedure to request coronial material, and providing updates as to major developments in the investigation. In all the circumstances, in my view, Professor Helmer has not established that it was a denial of procedural fairness for the Coroners Court to have decided, on 13 March 2024, to cease engaging on the issues in the memoranda. In short, the 13 March letter was not procedurally unfair.

For the sake of abundant clarity, I note my view that Professor Helmer has the right to continue to make submissions to the Coroners Court that are relevant to the investigation into his wife’s death. The Coroners Court must receive those submissions. But that does not mean that the Coroners Court is required to respond to all or any such submissions. Professor Helmer’s submissions to date have been extensive and have raised many issues. The Coroners Court was in no way required to keep up a correspondence with Professor Helmer engaging with those issues.

On my reading of the 13 March letter, there was nothing in it that conflicts with the preceding paragraph.

Treatment of Form 45 application

As noted above, Professor Helmer submitted that the ‘refusal’ by the Coroner to disclose patient records and related documents requested in the Form 45 application was ‘unlawful’, as well as being was evidence of ‘unlawful bias, prejudice and favouritism’.[43] As already noted, I do not regard the Coroner’s treatment of the Form 45 application as a refusal. He has not decided it yet.
[43]See, eg, Plaintiff’s Outline of Submissions filed 6 August 2024, [3].

I address the argument that his treatment of the Form 45 showed bias, prejudice or favouritism under a separate heading, later in this reasons. In this section, I address the question: was the Coroner’s treatment of the Form 45 ‘unlawful’, in the sense that the Coroner was acting in breach of the hearing rule of procedural fairness?

For the reasons already given, I am not satisfied that the Coroner has unreasonably delayed the making of his decision on Professor Helmer’s Form 45 application. Further, and for completeness, it has not been demonstrated that Professor Helmer has been denied procedural fairness by reason of the fact that the Coroner has not yet made a decision on his Form 45 application. The delay in deciding it is not ‘unlawful’ in that sense, either.

It is too early to tell whether, in due course, the Coroner might have in mind a use of any of the documents in question that could be adverse to the reputational interests of Ms Turitsyna or Professor Helmer. Consistently with Annetts v McCann, if an issue of that kind were to arise, then before making his findings or any comments setting out any such adverse use of the material, I expect that the Coroner would allow Professor Helmer an appropriate opportunity to persuade the Coroner against such a finding or comment. I stress that nothing that has occurred to date suggests that an adverse use is contemplated, and so these remarks are hypothetical and speculative.

The Coroner may yet decide to provide access to at least some of the documents Professor Helmer seeks, at some stage of the investigation. And if the Coroner decides to conduct an inquest, then Professor Helmer may, unless the Coroner orders otherwise, have the right to receive from the principal registrar a copy of the coronial brief pursuant to s 115(1)(b) of the Coroners Act 2008. In these ways, in due course, it is possible that Professor Helmer may gain access some or all of the documents he seeks, at an appropriate time of the Coroners Court’s choosing. However, he has not demonstrated that he has any current entitlement.

No breach of hearing rule of procedural fairness

For these reasons, no breach of the hearing rule of procedural fairness arises from the two key instances or sets of conduct impugned and relied upon by Professor Helmer.

This does not exhaust all issues raised by the case that are connected with procedural fairness. I consider the further issues of alleged ‘secret communications’, and the claim of reasonably apprehended (or ostensible) bias, in the sections below.

Is there a reasonable apprehension of bias?

The bias rule of procedural fairness precludes a coroner from continuing to act in a matter where something has arisen that might lead a fair-minded lay observer to think that the coroner might not bring an impartial mind to the questions for determination before him.[44]

Has the Coroner had inappropriate communications with ‘a target of investigation’, the Melbourne neurologist, and his legal representative?

[44]See Johnson v Johnson (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Charisteas v Charisteas (2021) 273 CLR 289 and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, 166 [50] (Kiefel CJ and Gageler J), 205 [175] (Edelman J), 243 [292] (Jagot J); Victoria Police SOG Operators 16, 34, 41 and 64 v Coroners Court of Victoria [2013] VSC 246, [36]–[47] (Kyrou J).

Professor Helmer submitted that the Coroner had ‘secretly’ communicated with the Melbourne neurologist and his legal representative, in violation of the Coroners Act 2008 and rules of procedural fairness.[45] As well as being another claim of breach of the Act, it is also a significant element of Professor Helmer’s claim that a reasonable apprehension of bias has arisen.
[45]Plaintiff’s Outline of Submissions filed 6 August 2024, [1].

There is no evidence of any secret or inappropriate communications between the Coroner (or his staff) and the Melbourne neurologist. The fact that the records of all communications between them has not been disclosed to Professor Helmer proves nothing of that kind. For the reasons already explained, Professor Helmer is not entitled to receive all such records. The Coroner may in due course decide to disclose them pursuant to Professor Helmer’s Form 45 application, but that is a matter of discretion for the Coroner to decide.

Based on the evidence before the Court, there is nothing to suggest that there has been any communication between the Melbourne neurologist and the Coroner or Coroners Court that the latter have promised to keep ‘secret’ or that in any other way departs from the ordinary and appropriate communications that might be expected in any investigation. I refer to paragraph 29 above in this regard. Professor Helmer pointed that there has been two occasions on which the Melbourne neurologist has been asked to provide his records to the Coroners Court, and that this must mean he omitted one or more records the first time, perhaps omitting his record of the significant telehealth consultation on 16 May 2022. Even if this inferential reasoning by Professor Helmer is correct, it does not follow that the Coroners Court had to inform Professor Helmer of this, at least at the stage of the investigation reached when the proceeding was commenced.

The fact that there have been two actions taken by the Coroners Court to obtain documents from the Melbourne neurologist, one prior to 14 September 2023, and another via a ‘Form 4’ on 10 October 2023, and that the reason for this has not been explained to Professor Helmer, does not mean that the Coroners Court has done anything inappropriate, or that the treatment of the Form 45 application is an attempt to protect the Melbourne neurologist.

It follows that no breach of the Act has been established in this regard. It also follows that, to the extent that Professor Helmer’s argument that a reasonable apprehension of bias has arisen in this case depends on there having been secret and inappropriate communications between the Coroner (or his staff) and the Melbourne neurologist, that argument lacks a foundation.

Has the Coroner's conduct otherwise given rise to a basis on which it might be apprehended that he might not bring an impartial mind to the investigation?

Professor Helmer also submitted that the Coroner’s ‘refusal’ to disclose the patient records and related documents (including the statement), requested in his Form 45, was evidence of unlawful bias by the Coroner, and was for the purpose of protecting the Melbourne neurologist.[46]
[46]Plaintiff’s Outline of Submissions filed 6 August 2024, [3].

At the hearing, Professor Helmer clarified that he was making a claim of reasonable apprehension of bias and not actual bias. He advanced this submission in support of his argument that the defendant breached rules of procedural unfairness.

As already noted, I am not satisfied that any breach of procedural fairness has occurred by reason of the Coroner not yet having decided whether to grant access to the documents Professor Helmer seeks.

Professor Helmer submitted that the withholding of the documents was evidence on which it might be thought that the Coroner might be biased. For this reason, it is important to scrutinise the basis of Professor Helmer’s application for access to the documents. As already noted, in my view, Professor Helmer does not have an entitlement to receive the documents he seeks. He has invoked a discretionary power of the Coroner to provide them. As I have already said, I am satisfied that the Coroner’s delay in deciding that application was reasonable, given the complexity of the circumstances. In fact, further delay following the conclusion of this proceeding can reasonably be expected.

In these circumstances, the delay in deciding the application for access to documents cannot be seen as a proper basis on which a fair minded lay observer might apprehend the possibility that the Coroner is biased.

For completeness, the 13 March letter is likewise incapable of giving rise to an apprehension by a fair minded lay observer that the Coroner might be biased. It was a reasonably justified response to Professor Helmer’s complaints in the circumstances.

I refer to paragraphs 104 and 105 of these reasons, above. Professor Helmer’s affidavit[47] contained an argument based on s 115(5) of the Coroners Act that:

Everything disclosed between [the Melbourne neurologist], [the Coroner], [the principal registrar], and [another officer of the Coroners Court] remains secret, unlawfully. The sub-section's operational terms “knowing” and “reckless” apply to the persons who are privy to the secret communications. … It has already been argued - but ignored by [the Coroner] and his subordinates - that subsection 5 and its penalties apply if they have been knowing, reckless, and wilful in their repeated refusals to disclose according to the Form 45 filed five (5) months ago. The [Coroners Court staff’s] letter of March 8, 2024, is a knowing, reckless and wilful refusal to comply with this Form 45. …

[47]Affidavit of John Helmer affirmed 19 March 2024 and filed 31 March 2024, [29].

Professor Helmer’s argument based on s 115(5) has no merit, for the reasons I have already given. To the extent that his argument that there was a reasonable basis for apprehended bias might have depended on this argument, I do not accept this either.

For all these reasons, Professor Helmer has not established that there the fair minded lay observer might think that the Coroner might not bring an impartial mind to the issues in the investigation.

Are any of the impugned actions or omissions inconsistent with the standard of legal reasonableness in coronial decision making?

Finally, the grounds of the originating motion invoked the doctrine of the legal standard of reasonableness, claiming that the decision-making of the Coroner had infringed that standard with respect to the acts and omissions impugned in the originating motion. In this regard, the originating motion referred to two authorities.[48]
[48]Leahy v Barnes [2013] QSC 226; R v Matterson; Ex parte Moles [1994] 4 Tas R 87.

The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.[49]
[49]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 362 [63] (Hayne, Kiefel and Bell JJ).

The principles for identifying the boundaries of legal reasonableness are well established.[50] They were distilled in 2022 by Gordon J in Plaintiff S183/2021 v Minister for Home Affairs in the following way (references to earlier authority omitted):

…’Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker’ (emphasis in original). That conclusion will be open where a decision is ‘so unreasonable that no reasonable person could have arrived at it’, although it is by no means limited to such a case. It is concerned with both outcome and process.[51]

[50]Ibid [23]–[30] (French CJ), [64]–[76] (Hayne, Kiefel and Bell JJ), [88]–[92] (Gageler J). See also SZVFW (2018) 264 CLR 541; [2018] HCA 30, [80] (Nettle and Gordon JJ); and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, [130] (Crennan and Bell JJ).

[51]Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464, [31] (Gordon J) (citations omitted).

The test for legal unreasonableness is not limited by particular categories of conduct, process or outcome, or decisions affected by specific errors which bring about an improper exercise of power. Where reasons of the decision maker demonstrate a justification for the exercise of the power, it would be rare to find unreasonableness.[52]
[52]Zhong v Attorney-General of Victoria [2025] VSCA 1, [89] (Niall, Boyce and Kenny JJA) citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

I am not satisfied that any aspect of the conduct or omissions of the Coroner impugned by Professor Helmer was legally unreasonable. The 13 May letter was reasonably justified in the context in which it was sent, and the Coroner’s delay in deciding the Form 45 application was also reasonable. The reasons for which I have reached these conclusions are already set out in relation to the other grounds of the originating motion, above.

Concluding remarks

For the above reasons, I have decided that none of the conduct or omissions of the Coroner and Coroners Court complained of by Professor Helmer amounts to a denial of procedural fairness to Professor Helmer, nor any other form of error claimed by Professor Helmer.

The 13 March letter was not a ‘gag order’. It merely indicates that the Coroners Court will not write back to Professor Helmer in response to the issues in the ten memoranda or any further reiteration of them.

Professor Helmer is able to continue to send submissions to the Coroners Court relating to the death of his wife and the Coroners Court must receive such submissions. To this point I add the following further remarks.

Whether, when, and to what extent the Coroner considers any submissions of Professor Helmer before making any finding or comment pursuant to s 67 of the Coroners Act, and whether and when he responds to Professor Helmer about any such submissions, and whether he conducts the investigation consistently with how Professor Helmer submits he should, are matters for the Coroner to decide, not Professor Helmer.

If the Coroner chooses not to consider Professor Helmer’s submissions at all in conducting its investigation, and ultimately makes a finding or comment without having done so, there is a risk that the finding or comment will have been made in a way that materially fails to accord procedural fairness to Professor Helmer, or will have failed to address a significant matter the Coroner was required to consider in order to discharge his functions lawfully, or will have been reached irrationally or otherwise unreasonably.

However, it has not been demonstrated that anything of this kind has occurred in the case so far, or is likely to occur.

This proceeding will be dismissed.

The Coroner’s investigation into Ms Turitsyna’s death should now continue.

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2 May 2025